United States v. Jonathon Ortino ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10218
Plaintiff-Appellee, D.C. No.
3:19-cr-00142-WHO-1
v.
JONATHON ORTINO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Submitted December 14, 2023**
San Francisco, California
Before: KOH, H.A. THOMAS, and DESAI, Circuit Judges.
Jonathon Ortino, a former Department of Homeland Security (“DHS”)
employee with Customs and Border Protection (“CBP”), was sentenced to one year
of probation for three counts of wire fraud in violation of 18 U.S.C. § 1343. He
appeals the denial of his motion to suppress incriminating statements he made to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
agents with the DHS Office of the Inspector General (“OIG”) during a post-arrest
interview. We have jurisdiction under 28 U.S.C. § 1291. When reviewing the
denial of a motion to suppress, “[w]e review the district court’s legal conclusions
de novo and its factual determinations for clear error.” United States v. Wells, 55
F.4th 784, 791 (9th Cir. 2022). “Where the district court does not make a finding
on a precise factual issue relevant to the Fourth Amendment analysis, we ‘uphold a
trial court’s denial of a motion to suppress if there was a reasonable view to
support it.’” United States v. Magdirila, 962 F.3d 1152, 1156 (9th Cir. 2020)
(quoting United States v. Gooch, 506 F.3d 1156, 1158 (9th Cir. 2007)). We affirm.
Ortino argues that the district court erred in concluding that his statements
should not be suppressed pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967),
because OIG agents did not warn him that he could not face employment penalties
for exercising his right to remain silent. In Wells, we applied a subjective-objective
test to determine when, “in the absence of a direct threat of loss of employment,”
employment policies amount to “implicit coercion” in violation of Garrity. Wells,
55 F.4th at 797. There, we held that to be “entitled to suppression of his statements
absent a grant of immunity,” a public employee “must both be objectively
threatened with a substantial adverse employment consequence for refusing to
incriminate himself and be subjectively aware of that penalty.” Id.
Given the totality of the circumstances surrounding Ortino’s admissions, we
2
find there was a reasonable view of the evidence to support the district court’s
conclusion that Ortino’s belief that he would be terminated if he declined to
cooperate with the OIG agents was not “objectively reasonable.” Wells, 55 F.4th at
797.1 Ortino surrendered his service weapon, was read his Miranda rights multiple
times, and was explicitly told that his cooperation with the OIG agents was
voluntary. See Miranda v. Arizona, 384 U.S. 436, 444–45 (1966). After he was
read his Miranda rights, Ortino signed a Miranda waiver and continued to answer
agents’ questions, expressing relief over his admissions, and stating that he was
eager to come clean. Moreover, DHS OIG has multiple written policies stating that
cooperation with an investigation is not required if an employee is suspected of
committing a criminal offense, and Ortino has not identified any instances of CBP
acting to the contrary. These circumstances were sufficient to put “a reasonable
law enforcement officer on notice that he had the right to refuse to answer
questions.”
Because we do not find that Ortino’s belief was objectively reasonable, we
decline to reach the question of whether he had a sufficient subjective belief that he
would be terminated if he did not answer the OIG agents’ questions.
AFFIRMED.
1
Because the district court stated that it was “accepting” Mr. Ortino’s version
of the facts for purposes of the motion to suppress, it declined to make factual
findings where the parties’ evidence conflicted.
3